Blunt hammer syndrome

UPA didnt make a nuanced case for contesting the judgment on convicted MPs.

UPA didnt make a nuanced case for contesting the judgment on convicted MPs.

The great churning in India is unleashing two tendencies. On one hand,the moral needle on corruption is,slowly but surely,moving. All kinds of institutions are being emboldened to wield a broom in their own way: Om Prakash Chautala and Lalu Prasad are in prison. Cynics might argue that this only shows that you have to be out of power to be prosecuted. The way the CBI opens and closes cases lends credence to this charge. But politicians can no longer afford to defend rules that aided and abetted corruption. The collusive ancien regime of corruption was so widespread that these may seem like small mercies. But there is no question that the political class is now feeling more vulnerable.

On the other hand,there is a kind of crudeness in the institutional response. The entire train of events leading up to the cabinet withdrawing the ordinance that sought to correct a Supreme Court judgment on the disqualification of MPs exemplified this. There were problems with the Supreme Court judgment. But the government showed disgraceful haste in rushing an ordinance through,rather than going through a proper parliamentary debate. Rahul Gandhi,who has been sleeping through the winds of change sweeping India,decided to play catch up in the crudest manner possible. He ended up showing contempt for institutions,signalling that morality is not a matter of public reason but his personal whim. His sinister opportunism clouded what might have been a policy triumph. He may claim credit for the outcome. But he has also revealed himself as less trustworthy. Would you trust someone who needlessly did what he did to Manmohan Singh? The Congress cabinet,ever ready to be the doormat,caved in to overturn a considered decision. And more importantly,the nuances of the argument were all crowded out.

The bill the government introduced to overturn the judgment on Lily Thomas vs Union of India,and the subsequent ordinance,were shoddy pieces of work. But there is an issue. It may not be the most popular thing to say but the Supreme Court judgment may create problems that need to be discussed. For a moment,just step back from the current heat and focus on the following question. What is the best case that can be made for saying that an MP must not be disqualified immediately after conviction by a lower court? He should be given,at most,90 days to appeal,to have a higher court look at the conviction,and be disqualified immediately if the appeal is not admitted.

Why might this safeguard be necessary? In the case of a sitting MP,the ramifications of the judgment extend to government as a whole and possibly to a democratic verdict. Just think of a scenario where a government has a wafer thin majority of one or two. A lower court convicts an MP and the government falls as a result. Of course,if the MP is guilty,the court has no choice but to convict,no matter what the consequences. But it is not entirely unreasonable to think that,given how large the consequences might be for government,it would be better to have another judge at least take quick look and ascertain that the lower court judgment was not mala fide or deeply erroneous. No one is saying the MP should not be disqualified. But surely it is not unreasonable to seek a safeguard against one mischievous or incompetent judge causing a major disruption in government. Given the high rates of appeals,of overturning lower court judgments,this is not an unreasonable worry. The idea is not to protect the wrongdoing of individual MPs; it is to prevent the possibility of the House and government being waylaid by a judicial error. Exactly such a possibility had been hinted at in an older constitutional judgment,in the 2005 K. Prabhakaran vs P. Jayarajan case. The court had suggested that it was within legislative competence to provide safeguards for the integrity of the House as a whole.

This background needs to be kept in mind when we discuss another point often raised. Why should a sitting legislator and a potential candidate be treated differently? They should not. But it is not unreasonable for a legislature to simply provide for an extra safeguard,given the potential consequences for the House as a whole. Again in K. Prabhakaran vs P. Jayarajan,the court had left open the possibility that the legislators may,for certain purposes,be carved out as a special class,provided there was a reasonable public justification for doing so. Now these considerations may not be decisive. But they are not without weight.

The real mystery in this whole affair is not that an argument cannot be made for introducing safeguards. The real mystery is that the government made its own case shoddily. So for example,the bill it introduced was neither fish nor fowl. It prevented the convicted MP from voting in the House but did not disqualify him. This undercut the argument about the integrity of the House that the Jayarajan case had tantalisingly made possible. It also made it patently obvious that the objective was to protect individual legislators,not the larger integrity of the institution.

Some day this governments legal record will need to be deciphered. The quality of legal argumentation coming out of government is so bizarre that you are almost tempted to believe that there is subversion from within. The attorney generals office has made a mockery of itself by being so casual in the way it makes arguments. But these days,many bills are drafted in ways that obey the dictum thou shalt draft a bill in the least competent way possible. There is a long chain of institutional decay that found perfect expression in Rahul Gandhis outburst.

So,as we exult in the triumph of people power in moving the moral needle,we still need to worry about institutional competence and making room for fine-grained arguments. When regimes of power have lost so much credibility,their ability to mount a reasonable case is zero even when there are arguments to be made. This government has been disabled in public justification by lawyers who were too clever by half,an executive that was mum and the will of a dynasty that is capricious. Second,there is a kind of impatience in the public as well. This impatience is empowering,and it has pushed the needle. But taken too far,it can undo the good it is capable of,if it denigrates forms. In the end,as Tocqueville said,all democratic government is sustained by form. The age of the blunt hammer needs to make space for the art of fine distinctions.

The writer is president,Centre for Policy Research,Delhi,and a contributing editor for The Indian Express